Canada: What Hospitals Need To Know Following The Supreme Court Of Canada’s Decision On Physician-Assisted Dying

Last Updated: February 24 2015
Article by Kathryn Frelick and Jesstina McFadden

On February 6, 2015, the Supreme Court of Canada ("SCC") issued Carter v. Canada (Attorney General) ("Carter"), a landmark and unanimous decision on physician-assisted dying. 

In its decision, the Court declared the Criminal Code of Canada ("Criminal Code") provisions prohibiting a physician's assistance in dying to be void where physician-assisted dying was being sought by competent, consenting adults with grievous and irremediable medical conditions.   

What Hospitals Need to Do

The Carter decision has a number of implications for hospitals.  It is expected that patients, families and health care providers will have questions regarding physician-assisted dying, and may actively seek this option as part of a plan of treatment for end-of-life, or through power of attorney documents, advance directives or other instructions.

The Court's declaration of invalidity does not take effect until February 6, 2016, to allow the federal and provincial governments to put in place legislation to address these issues.  Nevertheless, it is strongly recommended that hospitals and other health care facilities be proactive in ensuring that mechanisms are in place for addressing issues relating to physician-assisted dying as part of the continuum of end-of-life decision-making.  This includes:

  • End-of-life policies and procedures that address end-of-life decision-making (including palliative sedation, the withdrawal and withholding of treatment and physician-assisted dying) and that are consistent with federal and provincial laws and professional obligations;
  • Forms and other tools that are consistent with and support hospital policy;
  • Information and education for physicians and staff regarding the Carter decision, its implications and the organization's response; and
  • Strategies and tools for communicating with patients and families about physician-assisted dying.

Miller Thomson's Health Industry Group has extensive experience advising clients on end-of-life issues, and has assisted health care facilities in developing and updating end-of-life policies, procedures and tools and providing education to Boards, organizational leadership and health care providers.  We would be pleased to provide our assistance in positioning your organization to appropriately address physician-assisted dying and related issues.

What Hospitals Need to Know

Under the Criminal Code, it is a criminal offence to aid or abet a person in committing suicide, and no person can consent to death being inflicted upon them.  These provisions effectively prohibit the provision of assistance in dying in Canada.   

In Carter, the constitutionality of this prohibition was challenged by a group of claimants that included a woman with amyotrophic lateral sclerosis (ALS) and a physician who would be willing to participate in physician-assisted dying if it were no longer prohibited.  The SCC concluded that the Criminal Code provisions prohibiting assistance in dying unjustifiably infringe the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms ("Charter"), to the extent that they deprive a competent adult of physician assistance in dying, where the individual:

(1)   clearly consents to the termination of life; and

(2)   has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.   

In its decision, the Court was clear that the scope of its declaration was restricted to these factual circumstances, and was not intended to address other situations where physician-assisted dying may be requested.   

As noted above, the Court suspended the declaration of invalidity until February 6, 2016 to allow the federal and provincial/territorial governments time to enact legislation consistent with the constitutional parameters set out by the Court, should they choose to do so.  In the meantime, it declined to provide a constitutional exemption to the continued application of the current Criminal Code provisions.  At present, the Criminal Code restrictions remain in place. 

In reaching its conclusions in Carter, the Court suggested that assisted dying is part a continuum of end-of-life decisions that also includes refusal and withdrawal of lifesaving or life-sustaining treatment and palliative sedation.  The Court supported the trial judge's finding that concerns about decisional capacity and vulnerability for those who may seek physician-assisted dying were applicable to all end-of-life medical decision-making, and that the associated risks could be properly limited through a carefully designed and monitored system of safeguards including existing mechanisms for physician assessment of decisional capacity on a case-by-case basis.

The Court made it clear that its decision simply renders the criminal prohibition on physician assistance in dying invalid, and is not intended to compel physicians to provide such assistance.  The Court also acknowledged that there may be a number of possible solutions to the social issues and competing societal values relating to physician-assisted death, and states that it remains open to the federal and provincial governments and physician regulatory authorities to address these issues through a "complex regulatory response."  In light of the key role physicians will play in assisted dying, any regulatory response will need to reconcile the Charter rights of patients and physicians. 

We fully expect that government and regulators will tackle the issue of physician assisted dying within the next year. We will continue to monitor developments in this area and provide updates as needed.   

There is no doubt that ongoing attention to end-of-life issues will continue to shape the law in this area.  Having effective policies, procedures and other tools in place will not only provide the best protection from liability for facilities and care providers alike, but will also ensure that any debate is focussed on the issues themselves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Kathryn Frelick
Jesstina McFadden
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Clark Wilson LLP
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright Canada LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Clark Wilson LLP
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright Canada LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions